FAY v. ASTRUE
Filing
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ORDER on Judicial Review - The decision below is AFFIRMED. Final judgment will be entered accordingly. (See Order.) Signed by Magistrate Judge Debra McVicker Lynch on 8/22/2011. (TMA)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NANCY E. FAY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the
Social Security Administration,
Defendant.
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Case No. 1:10-cv-0920-DML-WTL
Order on Judicial Review
Plaintiff Nancy Fay has brought this action seeking review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her applications
for Social Security Disability Insurance and Supplemental Security Income benefits (“benefits”)
under Titles II and XVI, respectively, of the Social Security Act.
Ms. Fay applied for benefits on June 4, 2004, alleging a disability onset date as of June
15, 2003.1 Through a variety of administrative proceedings, including a November 2005 hearing
at which she appeared with counsel before Administrative Law Judge Ann Rybolt (“ALJ”), the
Commissioner denied her application for benefits. Ms. Fay appealed to this court, and the court
reversed and remanded to the Commissioner. Fay v. Barnhart, No 1:06-cv-1262-JDT-TAB,
2007 U.S. Dist. LEXIS 74528 (S.D. Ind. Sept. 27, 2007). On remand, Ms. Fay appeared at a
second hearing with counsel before the same ALJ on July 2, 2008. The ALJ again denied her
1
The administrative law judge later determined that the date of onset could be no earlier than
August 30, 2003, because Ms. Fay had engaged in substantial gainful activity through August
2003. 20 C.F.R. §§ 404.1572 and 404.1574. Ms. Fay does not contest this finding.
1
application. The Appeals Council denied review, and Ms. Fay has now requested review of the
ALJ’s second decision as provided by 42 U.S.C. § 405(g).2
I. The Evidence before the ALJ
Ms. Fay was 54 years old at the onset of her alleged disability, 56 years old on the date of
the ALJ’s first decision, and 59 years old on the date of the ALJ’s second decision. She has been
diagnosed with physical and mental impairments, including fibromyalgia, osteopenia,
depression, and anxiety.
A.
Education and Employment History
Ms. Fay graduated with a Bachelor of Arts degree from Indiana University (“IU”) in
General Studies in 2007. At the time of the second hearing, she was a part-time student in the
Library Sciences graduate program at Indiana University Purdue University, Indianapolis.
Before obtaining her college degree, she worked as an office coordinator at the IU African
American Art Institute from 1995-2002 but left because she wanted a job with more narrowly
defined responsibilities. Later, she worked for Hospice of Central Indiana as a design specialist
from February 2002 to July 2003, when she took a brief medical leave. After that, Ms. Fay’s
position at the hospice was eliminated.
B.
Medical History
1.
Treating Physicians
On April 30, 2003, Dr. Tracy Salinas reported that Ms. Fay’s fibromyalgia had been
exacerbated by a car accident. Ms. Fay complained to Dr. Salinas of difficulty sleeping and
depression, and said her boss did not think she could keep up at work. After Ms. Fay
2
The parties have consented to the magistrate judge conducting all proceedings in this matter,
including the entry of judgment, as provided by 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
2
complained of more pain, depression, and fatigue, Dr. Salinas assessed Ms. Fay on May 16,
2003, as suffering from fibromyalgia, depression, and insomnia. More of the same complaints
followed on June 5, 2003, when Dr. Salinas signed, at Ms. Fay’s request, a work restriction
limiting Ms. Fay to a forty-hour work week in a stress-free, quiet environment because of
fibromyalgia and anxiety. The next day, Dr. Salinas provided a new statement that Ms. Fay
could return to work on June 12, 2003, for half days.3 Dr. Salinas saw Ms. Fay four more times
from June 2003 to March 2004. At these four visits, Ms. Fay complained of depression and
parasthesias (feelings of “pins and needles”). Examinations by Dr. Salinas were unremarkable.
Dr. Salinas ultimately concluded that chronic implications, such as pain and sleep deprivation,
were associated with fibromyalgia and were exacerbated in stressful situations. She concluded
that Ms. Fay could return to gainful employment in one to two years but could hold only a
flexible job with accommodations for her fatigue and other various moderate limitations. She
opined that Ms. Fay currently could work part-time and “was mentally incapable of dealing with
any normal amount of stress in a regular day.”
Dr. Alan Watanabe, an internist whom Ms. Fay saw for acupuncture treatment, also
diagnosed her with fibromyalgia. Ms. Fay began acupuncture treatments on July 30, 2003, and
noted improvement in her fibromyalgia symptoms but said she had existing neck tightness. Ms.
Fay continued to improve until she visited Dr. Watanabe on November 20, 2003, when he
reported that Ms. Fay was incapacitated and unable to perform work for a period of time,
although she had improved substantially. On October 21, 2004, Ms. Fay reported to Dr.
Watanabe symptoms of feeling cold easily, stiffness in her neck, upper back, and hands, and flulike achiness; he concluded that her fibromyalgia was uncontrolled. Seven days later, Dr.
3
Ms. Fay had taken a brief leave after she told Dr. Salinas she needed time off work for
physical therapy.
3
Watanabe opined that Ms. Fay has “severe fibromyalgia that caused extreme fatigue, sleep
disturbance, severe intolerance because of environmental changes, heightened sensation to
physical stimuli, and no adequate relief so she was unable to maintain employment.”
Dr. J. Michael Condit, a rheumatologist who had previously diagnosed Ms. Fay with
fibromyalgia in July 2002, saw her again in October 2004. At that appointment, Ms. Fay
complained of trouble sitting and concentrating for prolonged periods, difficulty remembering,
anxious feelings, aches and pains, stiffness, and exhaustion from walking. His examination
revealed some tender points and his impression was fibromyalgia exacerbated by the car
accident. He saw her again in October 2005, when she reported symptoms of intense pain in
most of her body, rating it as a 9 out of 10 on a pain scale. Dr. Condit’s impression was that she
had multiple tender points and seemed to be depressed and fatigued but was not in an unusual
amount of pain.
2.
State Agency Physicians
In August 2004, Dr. Richard Karkut, a clinical psychologist who performed a
consultative mental status exam, opined that Ms. Fay had a generalized anxiety and adjustment
disorder with a depressed mood and that she “didn’t report symptoms associated with major
depression.” Although sleep and appetite disturbances could be symptoms of depression, Dr.
Karkut found these were related to Ms. Fay’s physical ailments. Dr. Karkut found that Ms. Fay’s
self-deprecation, depressed mood, and difficulty concentrating were depressive symptoms.
Psychological tests adjudged Ms. Fay capable of abstract reasoning, with an adequate immediate,
recent, and remote memory, adequate judgment and insight, and adequate general fund of
4
information. Dr. Karkut assigned her a GAF4 score of 60 currently and as high as 70 in the past
year.
In September 2004, Dr. D. Unversaw, a psychologist, opined that Ms. Fay did not have a
severe mental impairment and had mild restrictions in activities of daily living, mild difficulties
in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or
pace, and no episodes of decompensation. Dr. F. Kladder, a second state agency psychologist,
affirmed that opinion.
Dr. Jeffrey Wichman performed a consultative physical evaluation of Ms. Fay on July 31,
2004. Ms. Fay reported fatigue and tender areas of muscles; his clinical impressions were
fibromyalgia and chronic fatigue syndrome. He found that her gait, ambulation, range of motion,
and muscle strength were normal. He opined that Ms. Fay was able to stand two hours in an
eight-hour work day.
C.
Ms. Fay’s Testimony
At her second hearing in 2008, Ms. Fay testified that she has been unable to work
because of difficulties processing information under stress (Tr. 541), dealing with cold (i.e. air
conditioning), sitting for a prolonged period of time (Tr. 542), concentrating in a noisy
environment (Tr. 543), and because she suffers from fatigue and pain. (Tr. 545)
1.
Education
Ms. Fay completed her undergraduate degree with a 4.0 GPA but said it took her a long
time and required accommodations from professors. (Tr. 541-43) Some professors allowed her
4
The GAF scale measures a “clinician’s judgment of the individual’s overall level of
functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition, Text Revision, 32-34 (2000). It requires assessing a current level of symptom
severity and functioning and adopting the lower of the two score. Id. The range of scores
indicating serious symptoms begins at 41 and ends at 50; the range for moderate symptoms
begins at 51 and ends at 60; and the range for mild symptoms begins at 61 and ends at 70. Id.
5
extra time to take tests because she struggled to concentrate with other people in the room. (Tr.
542-43) She was allowed to leave class to ease her stiffness or to run warm water over her
fingers. Id. She wore gloves and could bring a blanket or heating pad to class to ameliorate her
sensitivity to cold. Id. Ms. Fay said she napped after class because of fatigue. (Tr. 548)
Toward the completion of her bachelor’s degree, Ms. Fay tutored other students for
school credit. (Tr. 530) She set her own hours and worked no more than three times per week.
(Tr. 531)
Ms. Fay’s graduate school work has been on a part-time basis, limited to one or two
online classes per semester, which provides flexibility. (Tr. 553) She spends about four hours
on the computer each day completing coursework but gets up every ten to fifteen minutes to
relieve pain and stiffness. (Tr. 554-55)
2.
Sleep
Ms. Fay has been taking Amitriptyline to help her sleep.5 (Tr. 545) She usually sleeps
ten to twelve hours a night but wakes up one to four times each night. (Tr. 549, 546) Sometimes
she takes more medicine to fall back asleep. Id. She takes one to two hour naps after three hours
of activity some days; other days, she takes fifteen to thirty minute naps. (Tr. 566)
3.
Hobbies/Activities
Ms. Fay said she tries to do yoga, stretches, and walk for ten to fifteen minutes to relieve
stiffness. (Tr. 566, 556). She drives but limits her driving, especially on days when she is very
fatigued, fearing she will fall asleep at the wheel. (Tr. 527, 561) She plays the flute in the
Columbus Indiana Symphony Orchestra. (Tr. 556-57) The orchestra practices every Tuesday,
5
Dr. Boyce testified that Amitriptyline can be used for treating depression and as a sedative.
Based on Ms. Fay’s dosage, he opined she used it as a sedative, and Ms. Fay concurred that she
used it to help her sleep.
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but she is able to attend only a fourth or third of the practices. Id. The orchestra plays a concert
once every few weekends from September to July, but she attends only one or two because of her
condition. Id.
4.
Household Activities
Ms. Fay cooks minimally. She has cold cereal, a salad, and a microwaveable frozen
dinner each day. (Tr. 551-52) She shops for groceries when her daughters cannot do it for her
(Tr. 551), does laundry once a month (Tr. 565), handles her finances, and cares for her pets. (Tr.
550-52) Ms. Fay lives alone, but her daughters and son-in-law do the major grocery shopping,
vacuuming, mopping, and grooming of her pets. (Tr. 549-50)
Ms. Fay explained that her symptoms cause her to have good and bad days and make it
difficult for her to socialize because she has become short-tempered. (Tr. 561, 558) Ms. Fay has
not received any mental health treatment besides medication prescribed to help her sleep.6
(Tr. 547-48)
D.
Medical Expert Testimony
Dr. Paul Boyce, who is board certified in internal medicine, testified at the second
hearing. He had reviewed all of Ms. Fay’s medical records and opined that Ms. Fay did not in
fact have fibromyalgia. (Tr. 570) He explained that the doctors who had diagnosed Ms. Fay had
not consulted the protocol in the American College of Rheumatology, which requires a criteria of
eleven tender points out of eighteen at a given examination to support a diagnosis of
fibromyalgia. (Tr. 569) According to his review of the records, Dr. Boyce could identify at
most only ten tender points at a given examination. (Tr. 570)
6
Ms. Fay had taken some medications for depression in the past. At the date closest to the
second hearing, Ms. Fay’s medications included only Flexeril and Ultram, neither of which is
used to treat depression or anxiety.
7
E.
Vocational Expert Testimony
Vocational Expert Robert Barber testified that Ms. Fay could perform her past work as a
design technician or budget coordinator.7 (Tr. 589) In the Dictionary of Occupational Titles, a
design technician is classified as light, skilled, and with a specific vocational preparation
(“SVP”) of five. A budget coordinator is classified as sedentary, skilled, and with an SVP of
five. Further, Mr. Barber testified that skills Ms. Fay obtained in her past work would be
transferable to lesser skill jobs, including the skills of calculating, computing, compiling, and
coordinating data, interpersonal skills, and “probably” attention to detail. (Tr. 584) The ALJ
posed two hypotheticals to Mr. Barber that included a modified form of light work with no
mental limitations. Mr. Barber responded that under both hypotheticals Ms. Fay could return to
her past relevant work. (Tr. 589) In response to Ms. Fay’s counsel’s question whether a design
technician or a budget coordinator would require mental focus and concentration, Mr. Barber
said they would require “ample focus and concentration.” (Tr. 590) Further, Mr. Barber
testified that if Ms. Fay’s testimony were totally credible, there would be no jobs she could
perform. (Tr. 590)
II. The Decisional History
A.
The Five-Step Analysis
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment(s) which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to qualify for disability benefits, a claimant
7
According to Mr. Barber, Ms. Fay’s description of her role at IU is consistent with that of a
budget coordinator, even though different terminology, such as office coordinator, may have
been used throughout the hearing.
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must demonstrate that her physical or mental limitations prevent her from doing not only her
previous work but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled despite her medical condition. 20 C.F.R. § 404.1520(b). At step two, if the
claimant does not have a “severe” impairment (i.e., one that significantly limits her ability to
perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step three, the
Commissioner determines whether the claimant’s impairment or combination of impairments
meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R.
pt. 404, subpt. P, App. 1, and whether the impairment meets the twelve-month duration
requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At step four, if the
claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R. § 404.1520(f).
At step five, if the claimant can perform any other work in significant numbers in the national
economy, she is not disabled. 20 C.F.R. § 404.1520(g).
B.
The ALJ’s First Decision
In her first decision, issued January 23, 2006, the ALJ found at step two that Ms. Fay had
severe impairments of fibromyalgia, pain and fatigue secondary to fibromyalgia, depression, and
generalized anxiety. (ALJ’s 1st Opinion, Tr. 482) At step three, she found that Ms. Fay’s
physical and mental impairments, alone or in combination, did not meet or medically equal the
requirements for Listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders). (1st
Opinion, Tr. 483) At step four, the ALJ determined that Ms. Fay was capable of performing
modified light work that did not require production quotas. (1st Opinion, Tr. 487) Relying
9
largely on vocational expert testimony, the ALJ determined that given Ms. Fay’s RFC, she could
not perform her past relevant work (primarily because of her “state of mind” and because her
past jobs required “skill, precision, and diplomacy”) but could perform semi-skilled sedentary
jobs available in significant numbers in Indiana. (1st Opinion, Tr. 487-488)
C.
District Court’s Remand
This court remanded to the Commissioner following the first decision denying benefits to
Ms. Fay because the ALJ’s articulation of Ms. Fay’s mental impairments and her resultant
functional limitations was incomplete, inconsistent, and sometimes contradictory. Then-District
Judge Tinder instructed the Commissioner to “specifically address the mental-activities factors in
determining Ms. Fay’s [residual functional capacity] and ground those conclusions in the
evidence,” to include “any and all of those mental limitations . . . in the hypothetical question(s)
presented to a vocational expert,” and to ensure an “accurate and logical bridge exists between
the evidence and each conclusion.” Fay, 2007 U.S. Dist. LEXIS 74528, at *16 (internal
quotations omitted).
On appeal, this court found fault with the ALJ’s consideration of Ms. Fay’s mental
condition. On the one hand, it “appear[ed]” to Judge Tinder that the ALJ believed Ms. Fay
suffered from mental impairments limiting her work ability, but on the other hand, the ALJ had
not included a function-by-function analysis of those mental limitations as provided in 20 C.F.R.
404.1545(c)8 in order to determine their effect on her residual functional capacity (“RFC”).9 Id.
8
The relevant sections of the Social Security Disability regulations are virtually the same as the
Supplemental Social Security Income regulations, and for simplicity, the court cites to the
former. The parallel sections of the Supplemental Social Security Income regulations are located
at 20 C.F.R. § 416.900 and 20 C.F.R. §§ 416.1400-416.1499.
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at *6-*8. Further, this court identified inconsistencies in the ALJ’s findings that Ms. Fay’s
depression and anxiety affected her attention to detail to the extent she could not return to her
past relevant work, but that her attention to detail obtained in past employment was transferable
to other potential employment opportunities. Id. at *9-*10. Judge Tinder held that the ALJ’s
selection of mental limitations is appropriate only if grounded in the evidence and included in the
RFC. Id. at *9. Because of these inconsistencies, he directed the ALJ on remand to “articulate
her acceptance or rejection of the opinions relating to Ms. Fay’s nonexertional limitations.” Id.
at *15.
Following remand, the ALJ scheduled a second hearing, held July 2, 2008, and on March
4, 2009, issued her decision denying benefits.
Ms. Fay asks the court to reverse and remand to the Commissioner again on the grounds
that (1) the ALJ erroneously reconsidered (and changed) her original step two finding as to
whether Ms. Fay had severe mental impairments; (2) the ALJ failed to follow this court’s remand
order because she did not perform a function-by-function mental RFC assessment at step four;
and (3) the ALJ’s credibility determination and RFC were flawed because of an incomplete and
skewed evaluation of Ms. Fay’s activities of daily living.
D.
The ALJ’s Second Decision
The ALJ’s understanding of the court’s remand order was that she was to give “additional
consideration” to Ms. Fay’s mental impairments and any restrictions or limitations as a result of
any mental impairment. (ALJ’s 2nd Opinion, Tr. 375) On remand, the ALJ found at step two that
9
The only likely mental limitation included in the RFC was a restriction on “work involving
production quotas,” but the court was puzzled how this limitation fit the evidence and the ALJ’s
assessment of it. Fay, 2007 U.S. Dist. LEXIS 74528, at *7.
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Ms. Fay had one severe impairment – fibromyalgia.10 (2nd Opinion, Tr. 378) The ALJ
determined that Ms. Fay did not have severe mental impairments of depression and anxiety. She
reasoned that Ms. Fay had received no mental health treatment, did not take any medication for
anxiety, and that her “activities of daily living are illustrative of an individual who is not
experiencing severe depression or anxiety.” (2nd Opinion, Tr. 381)11 The ALJ noted Dr. Karkut’s
findings that Ms. Fay had adequate recent, immediate, and remote memory, adequate abstract
reasoning and judgment, and did not report “the collection of symptoms associated with major
depressive episodes.” (2nd Opinion, Tr. 382) She also pointed to the reports of state agency
reviewing psychologists Drs. Unversaw and Kladder, who each found that Ms. Fay had no
severe mental impairments based on objective medical evidence and that her mental limitations
were only mild.
At step three, the ALJ consulted the most analogous listings for fibromyalgia because
there is not a particular listing for that impairment: 1.02 (major dysfunction of a joint(s)) and
14.06 (undifferentiated and mixed connective tissue disease). She found that Ms. Fay did not
meet or medically equal either listing, a determination not challenged here.
At step four, the ALJ found Ms. Fay had the RFC to perform light work with the
following limitations:
10
The ALJ was even skeptical that Ms. Fay suffered from fibromyalgia, based on Dr. Boyce’s
testimony that Ms. Fay did not have at least eleven of the eighteen tender points required for a
fibromyalgia diagnosis. The ALJ explained that she was unaware of this diagnostic protocol for
fibromyalgia at Ms. Fay’s first hearing. Because of the circumstances, the ALJ gave Ms. Fay the
benefit of the doubt and found that she suffered from fibromyalgia, and that it was a severe
impairment.
11
The ALJ noted, for example, that Ms. Fay lives by herself and manages her household, that
she has no difficulty being around crowds of people (illustrated by her participation in the
symphony orchestra), that she completed her bachelor’s degree with a perfect GPA, and that she
was enrolled in graduate school.
12
Lift, carry, push, and pull up to twenty pounds occasionally and ten pounds
frequently . . . stand and/or walk for a total of six hours during an eight-hour work
day with an option to sit for five minutes each hour, at her work station . . . can sit
for a total of six hours during an eight-hour day, with an option to stand for five
minutes each hour, at her work station . . . can occasionally climb stairs and
ramps, balance, stoop, crouch, kneel, and crawl . . . cannot climb ladders, ropes,
and scaffolding . . . nor can she perform work involving heights or the operation
of hazardous moving machinery.
(2nd Opinion, Tr. 384)
For the RFC assessment, the ALJ relied on the opinions of Drs. Boyce, Karkut, Unversaw, and
Kladder because their opinions were based on objective medical evidence.
The ALJ questioned Ms. Fay’s credibility concerning the “intensity, persistence, and
limiting effects” of her symptoms. (2nd Opinion, Tr. 388) She did not believe all of Ms. Fay’s
testimony and, among other things, cited doctors’ assessments that Ms. Fay did not seem to be in
as much pain as she reported. The ALJ also did not think Ms. Fay’s activities of daily living
were indicative of someone with as many limitations as Ms. Fay alleged. She believed Ms. Fay
was overstating her symptoms.
Based on the RFC and the vocational expert’s testimony, the ALJ determined that Ms.
Fay could return to her past relevant work as a design technician or budget coordinator. (2nd
Opinion, Tr. 389)
III. STANDARD OF REVIEW
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ is required to
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articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
[her] reasoning . . . [and] build an accurate and logical bridge from the evidence to [her]
conclusion.” Id.
IV. DISCUSSION
Ms. Fay presents three arguments for reversal and remand. First, she claims the ALJ
erred at step two by finding that her only severe impairment is fibromyalgia. Second, she claims
the ALJ erred at step four by not performing a function-by-function mental RFC assessment as
the court directed in its remand order. Lastly, she claims the ALJ provided an incomplete
analysis of Ms. Fay’s activities of daily living, which resulted in flawed credibility and physical
limitations findings.
A.
Step Two Analysis
Ms. Fay contends that the law of the case doctrine prohibited the ALJ from changing her
finding in the first opinion that Ms. Fay had severe impairments of depression and anxiety to a
finding in the second opinion that Ms. Fay’s depression and anxiety were not severe mental
impairments.12 The law of the case doctrine applies to judicial review of Social Security appeals,
Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998), and requires that “once an appellate court
either expressly or by necessary implication decides an issue, the decision will be binding upon
all subsequent proceedings in the same case.” Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.
12
Although Ms. Fay’s opening brief complains that the ALJ altered her step two findings even
though step two had not been challenged in the initial appeal, she did not argue that the law of
the case was an independent basis for remand. Apparently prompted by one of the
Commissioner’s assertions, she first raised the argument in her reply brief.
14
1991). Whether an ALJ violated the law of the case is best determined “by carefully considering
the scope of the district court’s remand order.” Id. at 1061. “If an issue is left open after remand,
the lower tribunal is free to decide it.” Id.
Here, the court’s remand order left open for reconsideration the issue of whether Ms.
Fay’s mental impairments limited or restricted her ability to work. The court instructed the
Commissioner to clarify inconsistencies in findings related to Ms. Fay’s mental impairments and
to ground subsequent conclusions in evidence. In her second opinion, the ALJ articulated that
she understood that this was the purpose of the remand. Specifically, the order required the
Commissioner to “address the mental-activities factors in determining Ms. Fay’s RFC and
ground those conclusions in the evidence,” Fay, 2007 U.S. Dist. LEXIS 74528, at *16, and to
include “[a]ny and all” mental limitations in the hypothetical question(s) to a vocational expert.
Id. The Commissioner was directed to ensure “that an accurate and logical bridge exists between
the evidence and each conclusion . . . .” Id. (internal quotations omitted).
This case is unlike Key, in which the Seventh Circuit determined that an ALJ had acted
outside the scope of the remand order and inconsistent with the law of the case. 925 F.2d at
1061. In Key, the case was remanded for the narrow purpose of requiring the ALJ to “define the
physical exertion required of an assembler” because the ALJ had made only a conclusory
statement that assembler work was sedentary. Id. at 1058. On remand, the ALJ concluded that
the claimant could perform sedentary and light work. On appeal, the Seventh Circuit held that
the ALJ had violated the law of the case because the district court, which had first remanded the
case, “reached the same conclusion about [the claimant’s] past relevant work, because it stated
that ‘the ALJ failed to define the physical exertion required of an assembler.’” Id. at 1061.
15
Here, the court’s remand order was much broader and less defined than that in Key. The
remand never stated or assumed that Ms. Fay had severe mental impairments. In fact, the court
was perplexed by the ALJ’s entire analysis of Ms. Fay’s mental limitations, if any. The court
specifically noted, as one inconsistency, that at one point in her decision the ALJ indicated a
belief that Ms. Fay suffered from severe mental impairments but that in other portions of her
opinion she rejected limits on Ms. Fay’s working ability on the basis of mental infirmities. Fay,
2007 U.S. Dist. LEXIS 74528, at *6-*8 and *9-*10. Judge Tinder expressly directed the ALJ on
remand to “articulate her acceptance or rejection of the opinions relating to Ms. Fay’s
nonexertional limitations.” The court did not expressly or impliedly decide that issue; rather, it
expressly left that issue open for the ALJ to determine.
On remand, the ALJ repaired the contradictions and inconsistencies in her first opinion
and provided thorough analysis for her conclusion that Ms. Fay did not suffer from a severe
mental impairment. Her determination was supported by the opinions of Drs. Unversaw and
Kladder, state agency medical psychologists, who found Ms. Fay’s mental impairments to be
non-severe and whose opinions Ms. Fay has not challenged. The ALJ also adopted their findings
that Ms. Fay suffered from mild restrictions in activities of daily living, mild difficulties in
maintaining social functioning, and mild difficulties in maintaining concentration, persistence,
and pace, and no episodes of decompensation. The ALJ also relied on Dr. Karkut, a psychologist
who conducted the only mental status examination of Ms. Fay, who opined that Ms. Fay did not
report symptoms associated with major depressive episodes, and who documented that Ms. Fay’s
“recent, immediate, and remote memories were adequate; reasoning and judgment were
adequate.” Lastly, the ALJ based her determination on Ms. Fay’s testimony, particularly
regarding her activities of daily living, finding that they were inconsistent with the daily
16
activities of someone suffering from severe mental impairments of depression and anxiety. This
evidence is sufficient to support the ALJ’s finding that Ms. Fay’s mental impairments were not
severe.
Ms. Fay contends that this court, by necessary implication, affirmed the step two
determination in the ALJ’s first opinion because if it had disagreed with the ALJ’s step two
determination that Ms. Fay had severe mental impairments, it would have affirmed the first time
around because the lack of a function-by-function mental RFC assessment would have been
harmless, citing Calderon v. Astrue, 683 F.Supp.2d 273 (E.D.N.Y. 2010), as support. But
Calderon supports the ALJ’s decision to revisit her assessment of Ms. Fay’s mental capacity.
Calderon recognizes that “a district court’s remand may implicitly authorize the ALJ to
reconsider issues not raised on appeal.” Id. At 277. For example, a remand to develop the
record could require the ALJ to reassess the medical evidence and in turn, reassess prior findings
“as to the nature and severity of claimant’s impairments.” Id. Ms. Fay’s logic on this point is
also based on a faulty premise. Judge Tinder had no occasion to agree or disagree with the
ALJ’s determination at step two that Ms. Fay had severe mental impairments; rather, he found
fault in the ALJ’s inconsistent statements on the issue.
Here, the court’s remand order directed the ALJ to analyze more thoroughly the medical
evidence. The ALJ’s compliance with that directive led her to reassess her prior finding that Ms.
Fay had severe mental impairments.
Moreover, even if the court had opined in its first decision
that it disagreed with the ALJ’s findings at step two and thought that Ms. Fay did not suffer from
severe mental impairments, it would not have necessarily affirmed on the basis of harmless error,
because the ALJ is required to “consider limitations and restrictions imposed by all of an
17
individual’s impairments, even those that are not ‘severe’” in the RFC assessment. SSR 96-8p,
20 C.F.R. 404.1545(a)(2).
The ALJ did not err by deciding on remand that Ms. Fay’s only severe impairment was
fibromyalgia.
B.
ALJ’s Step Four Analysis
Ms. Fay contends that the ALJ erred by not conducting a function-by-function mental
RFC assessment as the court ordered. Even though the ALJ found that Ms. Fay’s mental
impairments were not severe, she was still required to consider whether the RFC should reflect
limitations caused by any impairment, severe or not. SSR 96-8p; 20 C.F.R. 404.1545(a)(2). At
step four, the ALJ is required to identify Ms. Fay’s functional limitations or restrictions and
assess her work-related abilities on a function-by-function basis, including the functions in 20
C.F.R. 404.1545; SSR 96-8p. The function-by-function analysis requirement can be met by
completing a “narrative discussion of a claimant’s symptoms and medical source opinions . . . .”
Knox v. Astrue, No. 08-3389, 2009 WL 1747901, at **5 (7th Cir. June 19, 2009). Further, the
ALJ need not conduct a function-by-function analysis “for medical conditions or impairments
that the ALJ found neither credible nor supported by the record.” Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005); see SSR 96-8p.
The ALJ made a proper mental limitations RFC assessment by completing a narrative
discussion of Ms. Fay’s symptoms and medical source opinions, despite the fact that the ALJ did
not find her mental impairments credible or supported by the record. A narrative discussion
“describ[es] how the evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p.
It requires a discussion of symptoms alleged and medical opinions. Id. For symptoms alleged,
18
the ALJ must analyze objective evidence, inconsistencies in the evidence, and logically explain
any effects of those alleged symptoms. Id. For medical opinions, the ALJ must explain why
opinions were not adopted. Id.
Here, the ALJ completed each of these requirements. In determining whether Ms. Fay’s
depression and anxiety were severe, she thoroughly discussed Ms. Fay’s activities of daily living.
(2nd Opinion, Tr. 381-82, 385-86) She discussed objective medical testing, including that Dr.
Karkut’s examination revealed a normal mental status and that state agency psychologists found
Ms. Fay to suffer from only mild mental limitations. (2nd Opinion, Tr. 382) The ALJ also
discussed Ms. Fay’s symptoms, as she had reported them, and found Ms. Fay exaggerates her
symptoms. (2nd Opinion, Tr. 385-86) She found that Ms. Fay’s self-reports and symptoms
regarding pain and fatigue were inconsistent with the doctors’ findings. For example, she told
Dr. Condit her pain was a 9 out of 10, but Dr. Condit did not think she seemed to be in acute
distress. A similar interaction occurred with Dr. Watanabe. (2nd Opinion, Tr. 388) The ALJ also
explained that the opinions of Drs. Salinas, Watanabe, Smith, and Wichman were not given
controlling weight because they were based only on Ms. Fay’s self-reports rather than objective
medical evidence. (2nd Opinion, Tr. 387)
The ALJ’s narrative discussion met all of the requirements in SSR 96-8p. The ALJ did
not err by not separately performing a function-by-function mental RFC assessment, because she
found that Ms. Fay’s mental symptoms did not require special limitations or restrictions in the
RFC. That finding is supported by substantial evidence.
C.
Credibility and Activities of Daily Living Analysis
As a separate argument, Ms. Fay contends that the ALJ’s decision is based on a “flawed
credibility determination and a subsequent faulty determination of Ms. Fay’s physical abilities
19
and limitations” because the ALJ’s discussion of Ms. Fay’s activities of daily living is
incomplete. She further claims these flaws led the ALJ to conclude erroneously that Ms. Fay’s
activities of daily living support the finding that she can sustain full-time work.
1.
Standard for Evaluating Credibility
An ALJ is required to consider a claimant’s statements about her symptoms and how they
affect her daily life and ability to work, 20 C.F.R. § 404.1529(a), but is not required to accept
blindly the claimant’s statements. Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996) (ALJ not
required to give full credit to every statement of pain or find a claimant disabled because she
does not think she can work).
A two-part test determines whether a claimant’s description of her own limitations
contribute to a finding of disability. First, the claimant must provide objective medical evidence
of an impairment or combination of impairments that could be expected to produce the
symptoms she alleges. Second, the ALJ must consider the intensity and persistence of the
alleged symptoms. 20 C.F.R. § 404.1529(a)-(c). The ALJ must consider the claimant’s
subjective complaints in light of the relevant medical evidence, as well as any other evidence of
the following factors:
(i)
The claimant’s daily activities;
(ii)
Location, duration, frequency, and intensity of pain or other symptoms;
(iii)
Precipitating and aggravating factors;
(iv)
Type, dosage, effectiveness, and side effects of any medication;
(v)
Treatment, other than medication, for relief of pain or other symptoms;
(vi)
Other measures taken to relieve pain or other symptoms;
(vii)
Other factors concerning functional limitations due to pain or other symptoms.
20
20 C.F.R. § 404.1529(c)(3).
Having considered these factors, the ALJ may make a reasoned credibility determination
based upon the evidence about whether the claimant acts, day in and day out, like a person would
act who is really suffering from the symptoms the claimant alleges. This determination is
especially important if there are inconsistencies between the claimant’s testimony and the
objective medical evidence. It is not necessary for the ALJ to recite findings on each factor, but
the ALJ must give reasons for the weight given to the claimant’s statements so that the claimant
and subsequent reviewers will have a fair sense of how the claimant’s testimony was assessed.
See SSR 96-7p; Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003) (ALJ must comply
with SSR 96-7p in making a credibility determination by articulating the reasons behind the
determination).
Because the ALJ evaluates the credibility by questioning and evaluating a live witness,
the ALJ’s credibility finding is reviewed deferentially and will not be set aside unless it is
“patently wrong.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).
2.
The ALJ’s Credibility Determination
The ALJ found Ms. Fay met part one of the two-part test but that her statements
concerning the intensity and persistence of her symptoms were not credible. In making this
finding, the ALJ relied on the following: (1) the opinions of treating and testifying doctors, (2)
inconsistencies within Ms. Fay’s testimony and the medical evidence, (3) Ms. Fay’s complaints
to doctors regarding her pain and the doctors’ perceptions and assessments of these statements,
(4) Ms. Fay’s medications, (5) the ALJ’s observations of Ms. Fay at the hearing, and (6) her
activities of daily living. As the Commissioner observes, the ALJ’s analysis encompassed much
more than Ms. Fay’s statements about her activities of daily living.
21
The ALJ’s discussion of those activities – although not as favorable to Ms. Fay as she
would like – are not incomplete, contrary to Ms. Fay’s assertion. She concluded that Ms. Fay’s
activities of daily living “show she is much more functional than she acknowledges,” and the
ALJ summarized those activities. (2nd Opinion, Tr. 389) This summary included findings that
Ms. Fay lived alone, managed her home and finances, could be around crowds since she has
attended class and played in an orchestra when possible, had graduated with a 4.0 GPA from IU
with a baccalaureate degree and tutored while attending school, was attending graduate school,
and worked “extensively on a computer.” Id.13
The ALJ also provided further details of Ms. Fay’s testimony about her activities of daily
living. For example, in the discussion of her credibility, she noted that Ms. Fay reported she has
good days and bad days, that her concentration “really suffers” on bad days, and that she can
only sit for five to ten minutes until she becomes stiff. (2nd Opinion, Tr. 385) Earlier in the
opinion, at step two, the ALJ thoroughly discussed Ms. Fay’s activities of daily living. She
mentioned that Ms. Fay’s children help with household tasks and that Ms. Fay takes daily naps
because of interrupted sleep. (2nd Opinion, Tr. 381) She also described Ms. Fay’s flexible
tutoring schedule and her arrangement in undergraduate school for special accommodations in
class. (2nd Opinion, Tr. 381-82)
The court is satisfied that the ALJ did not just “select and discuss only the evidence that
favors [her] ultimate conclusion” but articulated her analysis of the evidence sufficient to permit
this court “to trace the path of [her] reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995);
Anderson v. Astrue, No. 08 C 4917, 2009 WL 2366088 (N.D. Ill. 2009). Here, the ALJ noted
13
On appeal, Ms. Fay criticizes the ALJ’s focus on these activities because the ALJ omitted
the facts that Ms. Fay required assistance and accommodation in doing some of these activities
and that Ms. Fay’s participation in the symphony orchestra had declined. These activities—even
in the context of some limitations—support the ALJ’s determination.
22
multiple times the testimony of Ms. Fay’s activities of daily living that favored Ms. Fay, as
outlined above. Despite some favorable testimony, the ALJ noted that most of Ms. Fay’s
testimony regarding her activities of daily living was not consistent with the pain she claimed to
have. As noted before, if the evidence presented by the ALJ is such that “a reasonable mind
might accept as adequate to support a conclusion,” id., this court may not reweigh the evidence
or substitute its judgment for that of the ALJ. Overman, 546 F.3d at 462. The evidence of Ms.
Fay’s activities of daily living reasonably support the conclusion that her physical limitations are
not as she claimed them to be.
The court rejects Ms. Fay’s assertion that the ALJ inadequately discussed Ms. Fay’s
activities of daily living and further finds that the ALJ’s credibility analysis was not “patently
wrong.”
V. CONCLUSION
Because the ALJ did not violate the law of the case doctrine in finding Ms. Fay had no
severe mental impairments, conducted a proper RFC assessment and a proper credibility
analysis, the court can find no basis to overturn the Commissioner’s decision that Ms. Fay does
not qualify for disability benefits.
Therefore, the decision below is AFFIRMED. Final judgment will be entered
accordingly.
So ORDERED.
08/22/2011
Date: __________________
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
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Distribution:
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
tom.kieper@usdoj.gov
Timothy J. Vrana
tim@timvrana.com
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